Wade Clark Mulcahy LLP

If a plaintiff fails to specify exactly where and how their alleged accident occurred, it may lead to a dispositive ruling in defendant’s favor.

For example, in T. N. v City of New York, 2024 NY Slip Op 02539 (2d Dep’t May 8, 2024), the 13-year-old plaintiff was injured after she fell down the basement steps of Stephen Decatur Middle School No. 35 in Brooklyn in March 2016. Plaintiff’s notice of claim, bill of particulars, and several depositions all identified staircase B as the subject staircase. However, during a March 2021 site inspection plaintiff identified staircase A as the actual staircase where she fell. Defendants moved for summary judgement on the grounds that plaintiff repeatedly failed to correctly identify the place where the accident occurred. Plaintiff cross moved to amend the complaint to correct her failure, but the trial court denied her motion.

The Second Department affirmed the ruling because Plaintiff’s failure to identify the correct staircase was in violation of General Municipal Law § 50-e(2), which requires that the notice of claim set forth the place where the claim arose. When Plaintiff tried to amend the notice of claim to set forth the correct staircase, the Second Department found that Plaintiff failed to demonstrate a lack of prejudice due to the five-year delay in seeking leave to identify the correct accident location.

This ruling shows that under certain circumstances, failure to identify even the correct stairway can result in dismissal of a case.